It is common for homeowners associations to have conflicts with association members regarding alleged violations of the association’s governing documents by the homeowner member. All too often these conflicts are not properly handled by the association and mushroom into protracted litigation that is extremely costly to the association, divisive, and unproductive. By properly utilizing internal enforcement procedures, a homeowners association can effectively resolve many conflicts relating to governing document violations and avoid becoming embroiled in litigation.
When a homeowners association seeks to enforce provisions contained in the association’s governing documents against one of its members, the association must have clearly defined fair and reasonable standards and procedures for the enforcement of its governing documents. It must follow those procedures and make reasonable decisions in good faith which are not arbitrary or capricious. The association’s governing documents should clearly set forth the required procedures for enforcing the association’s governing documents. Such procedures should cover the reporting and investigation of alleged violations, the standards for hearings pertaining to an alleged violation, post hearing procedures, fine schedules, and other possible remedies. The governing documents should also contain provisions that provide for procedural due process in connection with the action that is taken to seek enforcement of those governing documents.
A homeowners association’s standards and procedures for the enforcement of its governing documents should, at a minimum, provide for:
- The process for making a complaint of a violation to the association;
- The process for investigating the facts relating to the violation complained of;
- Providing notice to the member of the alleged violation and a hearing concerning the violation;
- The conduct of the hearing on the alleged violation;
- Notice to the member of the ruling following the hearing; and
- The procedure for the member to appeal a decision made at the hearing.
The association’s procedures relative to the notification of the hearing on the alleged violation should contain provisions that allow the member to respond in writing in lieu of actually attending the hearing and should set a deadline in advance of the hearing date for receipt of the member’s written response. Additionally, the procedures should empower the association’s directors to make a decision at the conclusion of the hearing or to take the matter under submission, provided the decision is made within a specified number of days following the hearing date. The board’s decision should also include factual findings on all issues that were addressed at the hearing and require the board’s decision to have been made by a majority of a quorum of the directors at a properly conducted board meeting. In associations where the hearing and a decision was made by an enforcement committee whose members may not all be directors or who constitute a subset of the entire board of directors, the association’s enforcement procedures should contain provisions that allow an aggrieved party to appeal the enforcement committee’s decision to the full board of directors who would either review the committee’s decision or conduct a new hearing on the matter.
Not all disputes between homeowners associations and their members will be resolved through the use of internal enforcement procedures. Establishing a record that indicates that the association made reasonable efforts to obtain compliance by the association member before initiating litigation will place the association in a better position in the resulting litigation and will provide the association with valuable information gained from the internal enforcement proceedings that will facilitate and most likely reduce the cost of the resulting judicial proceedings. Additionally, an association that can demonstrate to the court that it made serious attempts to resolve the conflict without resorting to litigation will have a stronger argument in favor of an award of all of its costs and attorney fees by the court.
Because of the importance of having standards and procedures for the enforcement of governing documents that comply with state statutes and the association’s governing documents, which may also necessitate properly drawn and approved amendments, the implementation of an association’s standards and procedures for the enforcement of its governing documents should be done in consultation with, and under the direction of, experienced legal counsel for the association.